human trafficking case dismissed in hawaii

Yesterday U.S. Chief District Judge Susan Oki Mollway dismissed all charges against Alec and Mike Sou of Aloun Farms in Hawaii at the request of federal prosecutors. The brothers were accused of trafficking 44 laborers from Thailand and forcing them to work on their Hawaii farm. A number of issues arose with the indictments that would have made it difficult for the prosecution to carry its burden of proof. The U.S. Department of Justice supervisor on the case recommended dropping the charges after an earlier ruling by the judge, failure to utilize witness testimony effectively, and other issues made it unlikely the State could prove its case.

Prosecutor Susan French conceded federal law in 2004 did not make it illegal to charge laborers recruiting fees when the brothers recruited and brought the 44 Thai workers to Hawaii. Each worker was charged between US $16,000 and $20,000 for the chance to work on the Aloun farm. Mollway's ruling Tuesday meant prosecutors couldn't claim in court that the recruiting fees were illegal. The law was changed in 2009 to make charging such recruiting fees illegal.

Federal prosecutors also failed to effectively use the witness testimony of Mattee Chowsanitphon to demonstrate a different violation of federal law. Under federal guest worker rules, employers are required to pay for plane tickets. However, it's alleged the recruitment fees paid by the Thai workers were being used to purchase their plane tickets to Hawaii. But the government didn't connect the dots clearly enough during the 3 days of testimony before a jury. Clare Hanusz, an immigration attorney representing many of the Thai workers said:

The government never really connected the dots to show that was the workers' money and that was illegal... There were things that were done that were clearly in violation of the law. I guess because of procedural issues with a number of issues in the indictment, everything got thrown out.

The workers paid the recruitment fee in exchange for a guarantee of US $9.60 hour wages for three years and the Sou brothers were supposed to take care of securing their guest worker visas. Neither promise turned out to be true. The workers were paid much less than $9.60 an hour. The Sous and their attorney claim hefty deductions were made for taxes. And they blame the government for the not renewing the visas after the first few months. The Thai workers would not have been able to earn money to repay their recruitment and travel debts without valid visas, but the Sous maintain that's not their fault.

While I'm certainly not an expert on the legal problems of this trial nor am I claiming that Mike and Alec Sou are human traffickers, I do want to address the comments of one of the jurors. He said:

The government didn't prove that they were being caged and prevented from seeing anybody... They had freedom to move around, they had their passports, they were being fed, and the only thing that prevented them from working was rain.

This juror's comments reveal a fundamental misunderstanding of human trafficking and modern slavery. Modern slavery doesn't rely on shackles and the lash like in the Biblical story of Pharaoh and the Jews to keep people imprisoned. It utilizes less overt forms of control. The United Nations Office of the High Commissioner for Human Rights has identified several modern forms of slavery, including:

• Chattel slavery, where the enslaver has complete power over the life and liberty of the slave;
• Debt bondage, where migrant workers used as forced labour as a form of repayment for a loan;
• Human trafficking, which involves transporting people away from their home and coercing them into work via deception or violence;
• Serfdom, where serfs labour under landowners in exchange for the right to work on the fields of the landowners;
• Child labour and servitude, where underage children are forced to work in contravention of the law for little or no pay;
• Forced labour, where people are  illegally recruited to work under threat of violence; and
• Forced marriage, when women are forced into lives of indentured servitude and live in fear of violence and aggression.

The human trafficking and slavery case being made against the Sous looks like debt bondage. Retaining a passport and apparent freedom to move (not being held in a cage) don't disprove that the Thai workers were being held by an ever mounting debt created by the Sous that the could never pay off. It started with the incredibly high recruitment fee (many of the workers mortgaged their homes and properties to pay the fees; the others likely borrowed the money, possibly from the Sous, their associates, or other organized crime groups connected with human trafficking). The workers were no doubt enticed by the promise of high wages ($9.60 hour guaranteed for 3 years) and stability (employment for 3 years, employer handle the worker visas).

But those wages and legal guarantees turned out to be false. I doubt taxes were ever mentioned by the recruiters. Neither was the possibility that their work visas might lapse, trapping them with their employer. Prosecutors stated the workers were threatened with deportation by the employer if they complained about their low pay or living conditions. These are the hallmarks of debt bondage slavery.

The juror points out the workers were being fed even when they couldn't work because of weather. I wouldn't be surprised if it was by the employer, the Sou brothers and Aloun Farms, who was very likely not doing it out of the goodness of his heart but adding the costs to Thai workers' debts - most likely by deducting it from future wages. It's not mentioned directly where the workers were housed but the implication is in housing owned by the employer. In many cases similar to this, workers are housed by the employer and living expenses are deducted from their wages.

The purpose is to trap the workers under a mountain of growing debt. Costs continue to mount while pay is much less than promised or perhaps none at all if employer-generated expenses eat up all the wage. Interest can compound the problem, preventing the worker from ever paying down the principal. Or, as the prosecutors described it, debt bondage slavery economically entraps and manipulates the laborers through debt. It's not iron bars but dignity, honor, obligation and the perceived actions of law that prevent the laborer from leaving. Although none where mentioned in this case, threats of physical violence against the laborer's family back home can be used to persuade him / her to stay when these softer methods don't work.

Huge initial debt, lies about wages in the new country, illegal migration, growing debt for employer-provided living expenses and housing, and threats based on that illegal status and debt leveled at the worker and his/her family are the tools of psychological manipulation used in debt bondage slavery. It doesn't require cages and chains to imprison the individual. Clearly, governments and NGOs committed to fighting human trafficking and modern slavery aren't doing enough to educate people about what the modern face of slavery looks like.

Several of the Thai workers have received a T visa, a special government visa granted to trafficking victims, to remain in the US. They are continuing to seek compensation from the Sous in civil lawsuits. If they win, it will be interesting to see how the courts handle the issue of debts owed to the Sous and Aloun Farms. Will they be declared illegal or nullified on some other grounds? Or will the remedy include repayment plus damages?

With an increased focus on stopping human trafficking both in the United States and globally, cases like this one are important. Win or loss, each court battle demonstrates the structural and procedural hurdles in the law that must be changed and the attitudinal barriers that must be overcome in order to finally wipe human trafficking and slavery from the face of the planet.

Obviously, making sure the law you're charging in the indictments was on the books at the time the alleged crime happened is important. As is putting together solid witness testimony to link together the steps of the crime. These were failures by this prosecution team. Its dismissal unfortunately doesn't give us any insight into the more subtle problems that can arise in a human trafficking case. Issues around burden of proof, for instance, and the elements required to prove each of the 12 charges federal prosecutors filed against the Sous weren't addressed. This dismissal shouldn't be interpreted as dooming similar cases.

But what did emerge from this story is the perception gap. People, jurors, don't want to believe it's slavery unless it's in its most egregious form. No cages, no beatings, no crime. That's an important factor to keep in mind when prosecutors write their indictments and prepare their cases. It's also important for legislators to consider when they draft and amend trafficking laws.

Human trafficking is perceived by organized crime as a low risk and high profit activity. It has recently moved past arms trafficking to be the second most profitable activity for organized crime behind drug smuggling. Actions by the government and third sector must focus on reversing the balance so that trafficking is high risk with little to zero profit. Routine criminal convictions and seizure of assets are critical pieces of that strategy.